Courts Shouldn’t Join the #Resistance

Last week's travel-ban ruling by the U.S. Court of Appeals for the Fourth Circuit is a travesty. Not because the underlying policy is anything to write home about. As I wrote when the second executive order came out in March, "[r]efugees generally aren’t a security threat, for example, and it’s unclear whether vetting or visa-issuing procedures in the six remaining targeted countries represent the biggest weakness in our border defenses or ability to prevent terrorism on American soil." But the judiciary simply can't substitute its own policy judgment for that of our elected representatives, no matter how well-informed judges may be or how misguided they think our political leaders may be.

Indeed, what's going on here isn't a sober legal analysis -- incredibly, the majority opinion contains no discussion of the relevant statutory text, or of the scope of executive power in light of congressional policy (the so-called Youngstown Steel analysis) -- but a wholesale rejection of Donald Trump. Essentially, the court ruled that anything the current president does, at least in the areas of immigration and national security, is de facto (and therefore de jure) illegitimate. The judiciary has joined the #resistance.

Of course, even a court engaged in civil disobedience has to clothe its willfulness in legal trappings. Here's how that fig leaf looks here:

1. Find "snowflake standing" to bring the lawsuit for individuals who haven't personally been harmed but are experiencing "feelings of disparagement and exclusion."
2. As other courts have done, bypass the more technical analysis regarding statutory authorizations and restrictions on the executive power over immigration in order to pontificate on sexier constitutional claims (the opposite of the standard "constitutional avoidance" that courts practice).
3. Privilege various statements made by Donald Trump on the election trail, as well as media interviews by the president and his surrogates, over official determinations by the Departments of Justice and Homeland Security and the text of the revised executive order itself. Ignore the admissions of plaintiffs' counsel that another president, one not burdened by the "forever taint" of Trump's supposed bad faith, could lawfully execute the same order.
4. Indeed, ignore the revisions to the executive order, even though they fix the problems that the first order's hasty rollout created by, for example, providing exemptions not just to those with green cards and other valid visas, but also people with significant contacts to United States, students, children, urgent medical cases, and other special circumstances -- as well as detailing reasons for the remaining restrictions.
5. Find that the order violates the Establishment Clause by cherry-picking irrelevant precedents even though our immigration laws routinely classify would-be refugees and immigrants on religious grounds and the order only affects six of the 50 Muslim-majority countries, which contain but 13 percent of Muslims worldwide.

With no due respect, that's not law. It's another dog's breakfast of a legal ruling which I won't dignify with a full fisking. (Josh Blackman is a better man than I because he's in the midst of a multi-part series that does unpack the opinions, and I also recommend the work of Peter Margulies, a progressive immigration and national-security expert who actually believes in the rule of law.) 

Perhaps the worst thing about this ruling, and the identical one from the Ninth Circuit that we should get any day now, is that it makes me spend time supporting, as a matter of law, government actions that I don't think are helpful to either immigration or national-security policy. It's really the inverse of what I was doing in the late Obama years. As brother Josh says,

writing these (many) posts about the travel bans is not a particularly enjoyable or rewarding task, because I write in defense of policies I profoundly oppose. In many respects, my work on these cases is a mirror image to my previous work on the constitutionality [of] President Obama’s deferred action policies. While I supported DACA and DAPA as a matter of policy, I concluded they were unlawful. In contrast, while I oppose the travel bans as a matter of policy, I concluded they were lawful.

Thus, my commitment to the travel ban litigation is dual-faceted. First, I aim to fill the void, as there is a shortage of clear-eyed analyses of the travel bans due to Trump’s toxicity. Second, recognizing that the judicial resistance may ultimately defeat the Trump presidency, my sincere hope is that courts do so with as little collateral damage as possible to other areas of law.

They told me that if Trump won the presidency, the rule of law would suffer. They were right.